by Stacey A. L. Best
DEI as a Stand-Alone Concept
Diversity Equity and Inclusion, or “DEI,” means different things to different people, even in the same organization. For some, “DEI” is a singular noun meaning or relating to people of color, gender identity, or sexual orientation. For others, the acronym means increasing numbers of people belonging to those groups whose numbers are below their relative percentages in the larger population. To be sure, as far as they go, both definitions are mostly accurate. But these definitions fail to grasp the connection between “diversity” and the remaining parts of the acronym, “equity” and “inclusion,” and as a result, miss that there is a connection between DEI efforts and wellbeing.
Diversifying the ranks does not create wellbeing. Even diversity in leadership may not be enough to improve the environment so the workforce can thrive. That is because diversity does not automatically lead to equity, any more than equality leads automatically to inclusion. Equity and inclusion are necessary elements to wellbeing in a diverse workforce and they must be intentionally pursued.
Equity and Inclusion Equal Wellbeing
Many ask, “why can’t we just treat everyone equally?” The divergence between the concepts of equality and equity can be quickly and easily described. The internet abounds with graphic examples. Here is one that depicts the concepts of equality and equity while also incorporating visible diversity.
This image gives a graphic example of how equity intersects with inclusion. We also see here how equality is depicted as pointless and can even be perceived as intentionally exclusionary. Using the illustration, it is not hard to imagine the harm caused when we fail to be equitable and inclusive.
Given the differences between equality and equity in the illustration, we infer that inclusion is the goal. Assuming the goal is to enable all to enjoy the game, equity produced inclusion, which undoubtedly improved the wellbeing of the participants.
The need to adjust in certain contexts is obvious. In the illustration, the entire set of transactions needed to address the apparent inequities can be completed with little or no communication around problem identification. The method for removing barriers to inclusion in such circumstances has become common place. Circumstances like these are not very complicated and the remedy is readily recognized.
If the barriers to inclusion are not readily evident, finding equitable solutions presents different challenges. When the complexity of the barriers increases, so too do questions about the goal. There are related and important questions about who bears the responsibility to identify and attend to inequities. In both situations, where the barriers are unclear or complex, communication becomes a critical part of finding equitable solutions.
Leaving aside for a few more moments questions of responsibility for identifying and addressing inequities, the illustration helps us to see that equality does not work across the board, and equity is integral to inclusion and wellbeing. In other words, while DEI and wellbeing may be distinct disciplines, in study, and in life, they are interrelated.
Leaders wanting to create an environment that promotes wellbeing and in which employees can thrive must pay attention to issues of equity and inclusion. Any definition of DEI that ends at diversity of the ranks does not take equity and inclusion into account. While the definition of DEI that involves representation may result in attention to issues of equity and inclusion, it is not a forgone outcome. The goal and strategy must be intentional.
DEI Leaders and Leadership
Even leaders who are committed to creating an inclusive environment will face challenges identifying and addressing barriers, especially barriers outside of their frame of reference. Many are turning to DEI practitioners for help. Inclusion, however, is relational, so there is no way for leaders to outsource their responsibility to show care for employees whose identities have very little overlap with their own.
When considering wellbeing activities generally, leaders should consider activities that all staff can enjoy. Failing to consider the “Big 8” socially constructed identities of race, ethnicity, sexual orientation, gender identity, ability, religion/spirituality, nationality, and socioeconomic status, when choosing activities for the firm or agency can undermine DEI and wellbeing efforts. For some already on the brink of burnout, group activities that do not speak to them can feel compulsory and deepen feelings of being unseen and unheard.
Lean into Discomfort
With concepts like Critical Race Theory, on the one hand, and litmus tests for “being woke,” on the other hand, being used today as sword and shield, many are afraid to wade into uncomfortable conversation lest they be hit with the scarlet “R” of racist. In this way, fear can prevent leaders from learning about those who are different from them, driving disconnection and hastening burnout for employees who are already likely at higher risk for such consequences.
The fear of getting it wrong can be particularly exacerbated in lawyers who are taught to be cautious and stay away from areas where they are not competent to avoid malpractice. Typically, our responses will include avoiding these issues altogether, faking it ‘til we make it, or, because lawyers like to cover our bases, outsourcing responsibility to a dedicated professional and then, otherwise avoiding the issue. Such responses would be a missed opportunity.
While fear of getting it wrong is rational, leaders who want to create an environment that supports wellbeing will not apply this mindset to gaps in their knowledge about their employees. Relationships are challenging, especially relationships between people who identify differently and where there are significant differences in power dynamics. Relationships are two-way streets. So, while leaders need to build their capacity to identify and address barriers to inclusion, they should not be alone in that endeavor. Employees must contribute to problem identification and provide productive feedback.
Miscues and missteps should be expected. And everyone, including the employees the leader is trying to serve, will make them. Instead of bracing with fear, an effective leader will lean in with curiosity. An effective leader knows one thing: no one knows everything. Leaders who are open and curious might, as with the illustration, be able to observe the impact of office norms or choices of activities on their employees. Many more, though, will need to find ways to learn what they need to know from their employees.
An open and curious leader might learn by reading or listening to stories of others and realize how office norms and activities pose a barrier to employee engagement. An open and curious leader might ask employees directly how they feel about particular norms or activities. Or, an open and curious leader might take an indirect approach, presenting a scenario and waiting for feedback. The exact approach matters less than the effort because it is in the effort that care is shown.
Promote Psychological Safety
Being open and curious is an important aspect of creating a culture that promotes psychological safety. Still, employees need to know that they can trust their leaders with the unseen parts of their identity. Leaders must show some capacity to hold space for employees by being willing to confront challenges to disclosure including challenges coming from the leader herself.
Accepting responsibility for errors such as problems created by ill-considered communications rather than passing it onto someone else, attributing it to the employee, or ignoring it indicates employees can trust their leader. This will require leaders to resist human impulses that come with feelings of rejection. It means showing vulnerability. Remember, missteps and miscues will happen and, everyone will make them.
Showing employees how to handle disappointments and setbacks will give them an indication of how their leader will receive them when reporting emotionally challenging feedback. Equally, modeling respectful delivery of feedback to ill-considered communication will not only let employees know that they can safely disclose things to a leader but will also give them guidance on how to appropriately give feedback when facing similar circumstances.
Create a Culture of Feedback
Developing an inclusive environment requires a culture of giving and receiving effective feedback. Being open to feedback, also a critical part of improving psychological safety, means being open to hearing that an effort failed or did not land well with some employees. Further, a good leader will want to learn more than that something did not work; good leaders will want to know why it did not work. Getting to the heart of the matter is a skill that takes practice.
Anonymous surveys and the like might be popular and tempting options but consider the message they send about psychological safety as well as the limitations they pose on feedback. Instead, consider feedback an exchange of ideas with the goal being mutual respect and understanding. Practice being specific and avoid generalities and characterizations. Developing this culture will provide leaders open channels to learn what their employees need to thrive.
It is easy to think that DEI and wellbeing are unrelated specialties. They can be, but for leaders committed to protecting and improving the wellbeing of their employees, they cannot be. In fact, leaders who keep the two important concepts or goals separate risk negatively impacting the wellbeing of those employees who were the focus of their DEI efforts.
Stacey Best is the Executive Director of Lawyers Concerned for Lawyers (LCL) and, in that role is responsible for the strategic direction, daily operation, and management of the staff. Stacey represents and participates with key stakeholders at various agencies and Committees of the Supreme Judicial Court (SJC), including the SJC Standing Committee on Lawyer Well-Being, the BBO, and the Standing Advisory Committee on Professionalism to improve the quality of the legal profession.
Stacey joined LCL after spending 18 years with the Board of Bar Overseers (BBO) and the Office of Bar Counsel (OBC) as an assistant bar counsel. Before leaving the BBO to join LCL, with her deep knowledge and strategic approach to attorney discipline, Stacey became the Inaugural Director of Diversity Equity and Inclusion(interim) at the BBO. Stacey is interested in the topics of ethics, wellbeing, DEI, and leadership.
On December 2, 2019, in Capron v. Attorney General of Massachusetts, 944 F.3d 9 (2019) (“Capron”), the First Circuit Court of Appeals held that federal laws regulating the J-1 Visa Exchange Visitor Program for au pairs (“Au Pair Program”) do not preempt Massachusetts wage and hour laws applicable to domestic worker arrangements: Massachusetts Domestic Workers Bill of Rights Act (“DWBRA”), G.L. c. 149, §§ 190–191, and the Massachusetts’ Fair Wage Law, G.L. c. 151, § 1. This means that host families in the Commonwealth are obligated to pay au pairs at least the state minimum wage ($12.75/hour effective January 1, 2020) and overtime, higher compensation than the federal $7.25 hourly rate currently required under the Au Pair Program. It also means that host families–as employers of domestic workers–must become familiar with the DWBRA’s requirements because failure to comply with Massachusetts wage and hour laws can expose host families to substantial damages, including treble damages, attorneys’ fees and costs. See Andrea Peraner-Sweet, How to Hire a Domestic Worker and Stay Out of Trouble, 62 Boston Bar J. (Summer 2018).
The Au Pair Program And Its Compensation
As described in Capron, the Au Pair Program is a cultural exchange program regulated by the United States Department of State (“DOS”) through which foreign individuals can obtain J-1 Visas and be matched with United States host families to provide up to 45 hours a week of child care services while pursuing a post-secondary education. 22 C.F.R. § 62.31. The DOS administers the Au Pair Program through private placement agencies it designates to conduct DOS-approved exchange programs (“Sponsors). The Sponsors select and match participants with host families. 22. C.F.R. § 62.10.
The Au Pair Program regulations require Sponsors to ensure that au pairs are compensated “at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the [FLSA] as interpreted and implemented by the [Department of Labor (DOL)].” 22 C.F.R. § 62.31(j)(1). The DOL has determined that Au Pair Program participants are “employees” within the meaning of FLSA and, thus, entitled to federal minimum wage. 29 U.S.C. § 206(a). The FLSA, however, exempts live-in domestic workers from overtime payment. 29 U.S.C. § 213(b)(21). DOL regulations also permit deductions for the costs of room and board: either a fixed credit amount that is tied to a percentage of the federal minimum wage, or the actual, itemized costs, provided the itemized deductions are supported by adequate records. 29 C.F.R. § 552.100(c)–(d). Importantly, as the First Circuit notes, the FLSA contains a savings clause that “[n]o provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter.” 944 F.3d at 18 (quoting 29 U.S.C. § 218(a)).
Massachusetts Au Pair Compensation
The DWBRA defines au pairs as “employees” and “domestic workers” and their host families as “employers.” G.L. c. 149, § 190(a). Under the DWBRA and Fair Wage Law, au pairs are entitled to the state minimum wage and overtime pay at 1.5 times the hourly rate for “working time” over 40 hours per week. G.L. c. 151, § 1; 940 C.M.R. 32.03(3). An au pair’s “working time” includes all hours that the au pair is required to be on duty including meal, rest and sleep periods unless during those periods the au pair is free to leave the host family’s premises, use the time for their sole benefit and is relieved of all duties during these time periods. Id., 32.02. Host families are required to keep records of an au pair’s hours worked. Id., 32.04(2). The DWBRA also permits deductions for lodging and food, if agreed to in advance and in writing by the domestic worker, which are at a fixed credit amount of $35 per week for a single-occupancy room and $1.25 for breakfast, $2.25 for lunch, and $2.25 for dinner. Id., 32.03(5)(b)-(c).
Additionally, au pairs are entitled to at least 24 consecutive hours of rest when working 40 hours per week, workers’ compensation, sick time, and notice of why and when the host family may enter their living space.
In 2016, in response to enactment of the DWBRA, Cultural Care, Inc., a Sponsor au pair placement agency and two former Massachusetts hosts (“Plaintiffs”), sought declaratory and injunctive relief from the United States District Court claiming that the federal laws governing the Au Pair Program impliedly preempted Massachusetts wage and hour laws with respect to au pairs. The District Court found no preemption and dismissed the action, and Plaintiffs appealed.
The Plaintiffs claimed that the Au Pair Program preempted Massachusetts wage and hour laws under “field preemption” and/or “obstacle preemption.” Under “field preemption,” Plaintiffs argued that the detailed regulatory scheme governing the Au Pair Program together with the federal interest in regulating immigration and managing foreign relations evidenced the federal government’s intent to “occupy the field” of regulation of au pairs, thereby preempting state laws and regulations that might otherwise apply to au pairs. 944 F. 3d at 22. Under “obstacle preemption,” Plaintiffs argued that compliance with Massachusetts wage and hour laws would create an obstacle to achieving the underlying purposes and objectives of the Au Pair Program by frustrating the federal intent to “set a uniform, nationwide ceiling” on compensation obligations and recordkeeping and administrative burdens. Id. at 26-27.
The First Circuit rejected Plaintiffs’ arguments, concluding that Plaintiffs failed to sustain their burden of proving either field or obstacle preemption. The Court determined that Plaintiffs’ reliance on the DOS’s comprehensive and detailed regulations was insufficient to demonstrate a federal intent to oust a whole field of state employment measures, a “quintessentially local area of regulation.” Id. at 22. Rather, the Court opined: “It is hardly evident that a federal foreign affairs interest in creating a ‘friendly’ and ‘cooperative’ spirit with other nations is advanced by a program of cultural exchange that, by design, would authorize foreign nationals to be paid less than Americans performing the same work.” Id. at 26.
The Court also rejected Plaintiffs’ obstacle preemption claim that enforcement of Massachusetts’ employment laws would frustrate a federal objective of establishing a nationally uniform compensation scheme for au pair participants. Noting that “the text of the au pair exchange regulations…does not supply the requisite affirmative evidence that the state law measures would pose an obstacle to the accomplishment of the purposes and objectives of the Au Pair Program,” the First Circuit concluded, “[i]n fact, the text of the regulations reflects the DOS’s intention to ensure that the regulations would accommodate the DOL’s [Department of Labor] determination that au pair participants are employees who are entitled to be protected by an independent wage and hour law that is not itself preemptive….[and] that the DOS contemplated that state employment laws would protect exchange visitor program participants from their employers.” Id. at 32-33 (underline in original).
What do host families need to know now?
It is not yet clear whether Capron will apply retroactively or whether Massachusetts host families will be liable for back wages for au pairs who were not compensated in accordance with state wage and hour laws. The Attorney General’s office has indicated that, “at this time,” its focus is on ensuring that au pair agencies bring their programs into compliance with Massachusetts laws and it does not intend to enforce the DWBRA or other wage and hour laws against host families. The Attorney General’s office does note, however, that it has no control over private litigation. As of the time of this writing, at least three putative class action suits and one other action, all by private individuals, have been filed in Middlesex Superior Court against several Sponsor au pair agencies. No action has yet to be filed against any host families.
Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP. Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation. Andrea is a current member of the Boston Bar Journal.
Lauren D. Song is a Senior Attorney at Greater Boston Legal Services where her practice focuses on affordable housing preservation and development through public-private partnerships. Lauren is a current member of the Boston Bar Journal.